Feb. 5, 2014
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by Rem Rieder, USA TODAY

by Rem Rieder, USA TODAY

It's an idea that needs to have a stake driven through its heart - right away.

Rep. Mike Rogers, R-Mich., is floating the notion that journalists who publish articles based on classified information might be criminals who are "fencing stolen material."

Rogers is chairman of the House Intelligence Committee. But this is a proposition that has no intelligence at all.

"So if I'm a newspaper reporter for - fill in the blank - and I sell stolen material, is that legal because I'm a newspaper reporter?" Rogers asked FBI Director James Comey at a hearing Tuesday. "If I'm hawking stolen, classified material that I'm not legally in possession of for personal gain and profit, is that not a crime?"

After the hearing, according to Politico, Rogers made clear to reporters that he was talking about Glenn Greenwald, who has led the way in the coverage of the National Security Agency's rampant surveillance. Greenwald, a lawyer and freelance journalist based in Brazil, filed his stories on a freelance basis for the British newspaper The Guardian. They were based on classified documents leaked by former NSA contractor Edward Snowden.

With all due respect, writing a story based on classified material is a long way from knocking over a bank. What we have here is a blatant attempt to intimidate journalists by criminalizing their actions. The goal is clearly to choke off publication of articles that are embarrassing or uncomfortable to the government.

And, like it or not, many revelations clearly in the public interest have come to light because of leaked classified material. Putting journalists in the slammer for producing them may be gratifying to people who don't like the stories. But it's bad for democracy.

It's important to keep in mind that there are classified documents and then there are classified documents. The federal government for years has been guilty of overclassification, a practice decried by, among many others, the 9/11 commission. Obviously, there is material that needs to be kept secret - no one should be revealing troop movements. But there are many documents shrouded in darkness whose content should be known to the American people.

To their credit, Snowden and Greenwald, rather than dumping everything onto the Internet, have been selective about what they have disclosed. And here's the payoff: We are having a vitally needed debate about the limits of government snooping, thanks to Greenwald's alleged fencing of stolen property. Pre-Snowden, who knew the NSA was amassing all those phone records of American citizens suspected of absolutely nothing?

When Rogers pressed him on the issue, the FBI's Comey, to his credit, was reluctant to embrace the whole journalists-as-fences meme. It's one thing, he said, if the nefarious scribes are "hawking stolen jewelry, " but quite another when they're writing stories. There's that pesky First Amendment thing, after all.

Greenwald says he makes sure he gets freelance contracts because without them, he could be treated by the government as a source rather than a journalist, which would make him much more vulnerable.

As for what Rogers is up to, says Greenwald, who has joined eBay founder Pierre Omidyar's ambitious new news operation, the "fact that I've gone around the world doing this reporting in different countries and publishing reporting around the world - that is something they want to stop."

We'll give the last word to Chuck Tobin of Holland & Knight, who's one of the nation's top media lawyers.

"What the congressman calls 'fencing stolen property,' journalists and the Supreme Court call 'serving the public interest and the First Amendment,' " Tobin says. "The democracy is infinitely stronger when the people have more information and the government hides less. Our history, from the leaks of secret 18th century treaty negotiations with the French through the Pentagon Papers, teaches that."